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ary powers of legislation between the Dominion parliament and the provincial legislatures.
Courts sometimes look at Acts in pari materia with the particular statute in hand in order to determine its construction; and it is noteworthy that the Acts which have been utilized by the Privy Council in determining the meaning to be given to the B. N. A. Act have been almost uniformly "constitutional" Acts. For instance, in giving a wide interpretation to the words "property and civil rights" (No. 13 of section 92) justification was found in the Quebec Act, 1774, in which the same phraseology was used in a clearly large sense; and in the same case the words "regulation of trade and commerce" (No. 2 of section 91) were given a limited meaning in accordance with the view taken of somewhat similar words in the Act of union between England and Scotland. The scope of the phrase peace, order and good government" in the B. N. A. Act. 1871, was determined by reference to the same phrase in a constitutional Act relating to India, which had been held "apt to authorize the utmost discretion of enactment for the attainment of the objects pointed to." And in determining the extent of the legislative power conferred by No. 15 of section 92, "to make laws in relation to . . . the imposition of punishment by fine, penalty, or imprisonment the Privy Council declined to construe the words strictly as penal legislation; on the contrary, treating them as conveying plenary legislative power, their Lordships held that imprisonment" with or without its usual accompaniment, hard labour" might be imposed by provincial statutes; a con
See ante, p. 57 et seq.
See post, p. 196.
'Parsons' Case, 7 App. Cas. 96; 51 L. J. P. C. 11; 1 Cart. 265. The Quebec Act is referred to ante, p. 47. The same phrase, evidently taken from the Quebec Act, was used in the Act introducing English law into Upper Canada: see ante. p. 47.
The passages are quoted post, p. 200.
Riel v. Reg., 10 App. Cas. 675; 55 L. J. P. C. 28; 4 Cart. 1, following evidently Reg. v. Burah, 3 App. Cas. 889; 3 Cart. 409: see ante, p. 58.
'Hodge's Case, 9 App. Cas. 117; 53 L. J. P. C. 1; 3 Cart. 144. See cases noted post, p. 313.
struction which Burton, J.A., aptly characterizes as broad, liberal, and quasi-political.10
Historical Aids to Interpretation. It is, of course, proper to have regard to the circumstances surrounding the passage of the Act.1 But the rule is of limited application. In a comparatively recent case the Privy Council, referring to the grounds upon which an earlier case had been determined, said:
"It was not doubted that it was proper to have regard to the intent of the legislature and the surrounding circumstances in interpreting the enactment. But the question which had to be determined was the true construction of the language used. The function of a tribunal is limited to construing the words employed; it is not justified in forcing into them a meaning which they cannot reasonably bear. Its duty is to interpret not to enact. It is true that the construction put by this Board upon the first sub-section reduced within very narrow limits the protection afforded by that sub-section in respect of denominational schools. It may be that those who were acting on behalf of the Roman Catholic community in Manitoba, and those who either framed or assented to the wording of that enactment, were under the impression that its scope was wider and that it afforded protection greater than their Lordships held to be the case. But such considerations cannot possibly influence the judgment of those who have judicially to interpret a statute. The question is not what may be supposed to have been intended but what has been said. More complete effect might
10 Reg. v. St. Catharines Milling Co., 13 O. A. R. at p. 165.
1 Per Strong, J., in St. Catharines Milling Co. v. Reg., (1887), 13 S. C. R. at p. 606; 4 Cart. at p. 135. Many other dicta of Canadian judges to the same effect are given in the notes to proposition 4 in Mr. Lefroy's "Leg. Power in Can.," p. 41, et seq. See, however, the note (1) on p. 41.
'Brophy's Case, (1895), A. C. 202; 64 L. J. P. C. 70; 5 Cart.
• Barrett's Case, (1892), A. C. 445; 61 L. J. P. C. 58; 5 Cart. 32. Of s. 22 of the Manitoba Act, 33 Vic. c. 3 (Dom.), relating to the legislative power of the Manitoba assembly as to education. The Manitoba Act was validated by the B. N. A. Act, 1871; see post.
[29th March, 1867.]
Whereas the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their desire (b) to be federally
in some cases be given to the intentions of the legislature if violence were done to the language in which their legislation has taken shape, but such a course would on the whole be quite as likely to defeat as to further the object which was in view. Whilst, however, it is necessary to resist any temptation to deviate from sound rules of construction in the hope of more completely satisfying the intention of the legislature, it is quite legitimate where more than one construction of a statute is possible, to select that one which will best carry out what appears from the general scope of the legislation and the surrounding circumstances to have been its intention."
(b) The Quebec Resolutions.-As is well known, the B.N.A. Act is largely founded upon the Quebec Resolutions. Canadian judges have frequently quoted from them and have utilized them in construing doubtful passages in the Act. The Privy Council, however, has never referred to them in its judgments. For instance, the words "Rivers and Lake Improvements" in the schedule to section 108 were held to convey to the Dominion not the rivers themselves, but, in the words of the Quebec Resolutions, "River and Lake Improvements:" but the decision was reached on considerations ab inconvenienti without reference either to the Resolutions or to the French version of the B. N. A. Act, both of which clearly negative the view contended for by counsel for the Dominion. The fact that the B. N. A. Act must be judicially interpreted as expressing the will of the Imperial parliament rather than of the federating provinces tends to make it very doubtful how far, if at all, it is proper to refer to these resolutions. The fact, too, that they were subjected at
Printed in full in the Appendix.
Fisheries Case, (1898) A. C. 700; 67 L. J. P. C. 90.
united into one Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in principle to that of the United Kingdom:
And whereas such a union would conduce to the welfare of the Provinces and promote the interests of the British Empire:
London to revision by the delegates from the various provinces, renders them still more unreliable as legal guides to the interpretation of the B. N. A. Act.s
United States Decisions.-There is another matter which merits mention in this place, the extent, namely, to which Canadian courts may avail themselves of the decisions of the United States courts as to the powers of Congress and the State legislatures respectively. They are not, of course, authorities binding upon our courts, but under proper safeguards are very valuable aids to the study of the B. N. A. Act. The real difficulty, the risk even, in utilizing them for purposes of illustration arises from the difference not only in the principle, but also in the method, of division. There are certain matters on which neither the Dominion parliament nor a provincial legislature can legislate;1o and so, under the American system, there are certain laws which neither Congress nor a State legislature can pass. But there is not the slightest ground for comparison as to the nature and character of the subjects which are withheld from the legislative competence of Canadian legislatures and theirs, respectively. Canadian legislatures are debarred from legislating upon certain matters because those matters are deemed to be of Imperial concern, while the legislative power of both Congress and the State legislatures is circumscribed mainly in favor of individual liberty; and, in some of the State
8 See per Ritchie, C.J., in Re Portage Extension of R. R. Ry., quoted in Lefroy, p. 4 (n).
See the remarks of Hagarty, C.J., in Leprohon v. Ottawa, 2 O. A. R. at p. 533; 1 Cart. 592.
10 See Chap. IV., ante.
1 See Art. I. ss. 9 and 10.
And whereas on the establishment of the union by authority of parliament it is expedient, not only that the constitution of the legislative authority in the Dominion be provided for, but also that the nature of the executive government therein be declared:
And whereas it is expedient that provision be made for the eventual admission into the union of other parts of British North America:
constitutions more lately adopted, the limitations on the legislative power of the State legislatures certainly go to very extreme lengths. It cannot be said, therefore, in reference to the American system that if power over a certain subject matter is not with Congress it must be with the State legislatures, for it may be with neither. The "people of the United States," as a grand aggregate, have limited the power of Congress, and the people of the individual States, viewed as smaller aggregates, have likewise limited the sphere of authority of the different State legislatures. The matters allotted to Congress are, in a sense, specially enumerated, the unenumerated residuum being reserved (subject to certain prohibitions set out in the constitution of the United States) to the States or to the people; but the State legislatures again may be, and in many cases are, under the State constitutions, bodies with specially enumerated powers. In short, in the American system there are matters over which no body has legislative power, matters held in reserve, as it were, by the people of the United States or by the people of the respective States. Confining attention to Congress: after the enumeration of the special matters (themselves described in very comprehensive terms) over which Congress is to have legislative power, there follows this clause:*
"To make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other
Bryce's "American Commonwealth," Appendix.